Ryan v. Pub. Serv. Coordinated Transp.

• Decision Date: 01 July 1940
• Citation: 14 A.2d 52,18 N.J.Misc. 429
• Parties: RYAN et al. v. PUBLIC SERVICE COORDINATED TRANSPORT et al.
• Court: New Jersey Supreme Court

14 A.2d 52

18 N.J.Misc. 429

RYAN et al.

v. PUBLIC SERVICE COORDINATED TRANSPORT et al.

Supreme Court of New Jersey.

July 1, 1940.

Action by Helen Ryan and others against Public Service Coordinated Transport and others.

On motion to strike counts of the complaint.

Motion granted.

Joseph H. Gaudielle, of Hackensack, (James A. Major, of Hackensack, of counsel), for plaintiffs.

McDermott, Enright & Carpenter, of Jersey City, for defendants Elso Embroidery Mfg. Co. and Harry Elkin.

BARBOUR, Supreme Court Commissioner.

This matter comes before the court on motion made by defendants Elso Embroidery Manufacturing Company and Harry Elkin to strike the fifth and sixth counts of the complaint filed in the above-entitled cause on the ground that each of said counts does not set forth a legal cause of action.

In the fifth count of the complaint Edward Ryan, an infant, by his next friend Edward F. Ryan alleges a cause of action for personal injuries sustained by him while en ventre sa mere, and in the sixth count his father, Edward F. Ryan, seeks to recover for consequential damages.

The question is: Can an infant, in the absence of statute, maintain an action for personal injuries sustained while en ventre sa mere?

There is no statute or judicial authority in the State of New Jersey granting or denying to an infant the right to maintain an action for personal injuries sustained while en ventre sa mere, and while there have been strong dissenting opinions in other states the courts of review of other states have consistently held that such an action could not be maintained.

Defendants state, "At the time of the accident the infant was part of the mother, and any injuries received by that part of the mother were injuries to the mother and not injuries to the child in the mother's womb since the latter had no existence separate and apart from its mother."

The Supreme Judicial Court of Massachusetts in Dietrich v. Northampton, 1884, 138 Mass. 14, 52 Am.Rep. 242, held, "that, as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote to be recovered for at all was recoverable by her.

In Allaire v. St. Lukes Hospital, et al., 1900, 184 Ill. 359, 56 N.E. 638, 639, 48 L. R.A. 225, 75 Am.St.Rep. 176, the Supreme Court of Illinois said, "The action is not given by any statute, and, if maintainable, it must be so by the common law, and therefore the question is whether, at common law, the action can be maintained," and held that such action could not be maintained.

Mr. Justice Boggs in his dissenting opinion in that case gave the clearest argument in favor of the maintenance of such an action, saying, "It may be conceded no case adjudicated at the common law can be found wherein a plaintiff was awarded damages for injuries inflicted upon his person while in the womb of his mother. But an adjudicated case is not indispensable to establish a right to recover under the rules of the common law. Lord Mansfield declared: 'The law of England would be an absurd science were it founded upon precedents only. Precedents,' he observed, 'were to illustrate principles, and to give them a fixed certainty.' 1 Kent, Comm. 477."

He further said,

"The argument is that at the common law an unborn child was but a part of the mother, and had no existence or being which could be the subject-matter of injury distinct from the mother, and that an injury to it was but an injury to the mother; that in such case there was but one person, —one life,—that of the mother. A fcetus in the womb of the mother may well be regarded as but a part of the bowels of the mother during a portion of the period of gestation; but if, while in the womb, it reaches that prenatal age of viability when the destruction of the life of the mother does not necessarily end its existence also, and when, if separated prematurely, and by artificial means, from the mother, it would be so far a matured human being as that it would live and grow mentally and physically, as other children generally, it is but to deny a palpable fact to argue there is but one life, and that the life of the mother. Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the fcetus is capable of independent and separate life, and that, though within the body of the mother, it is not merely a part of her body, for her body may die in all of its parts and the child remain alive, and capable of maintaining life, when separated from the dead body of the mother. If at that period a child so advanced is injured in its limbs or members, and is born into the living world suffering from the effects of the injury, is it not sacrificing truth to a mere theoretical abstraction to say the injury was not to the child, but wholly to the mother?

"A child in ventre sa mere was regarded at the common law as in esse from the time of conception for the purpose of taking any estate, whether by descent or devise, or under the statute of distribution, if the infant was born alive after such a period of fcetal existence that its continuance in life was or might be reasonably expected. 10 Am. & Eng.Enc.Law, 624; Co.Litt. 36. Blackstone, after declaring the right of personal security to be an absolute right, says: 'The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. Life is the immediate gift of God,—a right inherent by nature in every individual; and it begins, in contemplation of law, as soon as an infant is able to stir in the mother's womb. For, if a woman is quick with child, and by a potion or otherwise killeth it in her womb, or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child, this, though not murder, was, by the ancient law, homicide or manslaughter.' Though it was the rule of the common law if one should unlawfully beat a woman pregnant with child, and thereby cause the child to die in the body of the mother, the crime was not deemed to be murder, but the ancient crime of homicide or manslaughter, still the doctrine of the common law was, if the child should not die in the womb of the mother, but should be born alive, and should afterwards die in consequence of the assault while in the womb of the mother, the offense was deemed to be murder. 3 Co. Inst. 50; 1 P.Wms. 345. If, in the contemplation of the common law,...